S v. Sma

HCMP 2210/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2210 OF 2013

(on an intended appeal from FCMC No. 7654 of 2008)

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Hon Yuen JA (giving the judgment of the Court):

1.This is an application out of time for leave to appeal the granting of a decree absolute on 21 December 2010.

2.The parties (for convenience, referred to as “Husband” and “Wife”) were married in Hong Kong in a civil ceremony.  It has been alleged in oral submissions to the Family Court (although not affirmed) that the parties also underwent Islamic rites in a mosque in Hong Kong.

3.According to the Marriage Certificate, they were both living in Hong Kong at the time of the marriage.  Thereafter they continued to live here.

4.However on 2 July 2008 the Wife lodged a petition for divorce against the Husband on the grounds of his unreasonable behaviour.  On 9 October 2008 the Husband (who was then legally represented) filed an Answer opposing the petition on the grounds that he had not behaved unreasonably.

5.Then on 18 November 2009 the Wife filed an amended petition for divorce, deleting the original ground of unreasonable behaviour, and replacing it with the ground that they had lived separately for more than 1 year and that the Husband consented to a divorce.  An acknowledgment of service from the Husband (by now, no longer legally represented) dated the same day showed that he was not contesting the divorce.

6.Eventually a Decree Absolute was granted on 21 December 2010.

7.Three months later however, on 17 March 2011 the Husband filed an application for leave to appeal the Decree Absolute out of time.  There were a number of hearings but essentially the gist of the Husband’s case was that he had bought a property in Dubai which had been placed under the Wife’s name, and she had obtained a court order in Dubai to the effect that the property was a gift to her.  The Husband’s stand was that if he could set aside the Decree Absolute, then somehow he could get the property back; and having done that, he would then dissolve the marriage under Islamic law and there could then be a Decree Absolute.

8.Judge Bruno Chan adjourned the matter a few times to allow the Husband to file further evidence but on 28 June 2013 dismissed his application for leave to appeal the Decree Absolute out of time.

9.The rules of court provide that if a judge refuses leave to appeal, an application should be made to the Court of Appeal within 14 days.       

10.It was not until 2 September 2013 that the Husband made the present application to this court for leave.  This is a substantial delay.  No satisfactory explanation has been given, apart from vague, unsubstantiated allegations about downturns in business, non-payment from clients and his mother’s illness.  As such, the explanation for the delay is unsatisfactory.

11.Notwithstanding delay, this court retains a discretion to give leave if the merits of the application are substantial enough.  Accordingly we have considered the applicant’s submissions in this regard.

12.It is not suggested that the Hong Kong court has no jurisdiction to grant a divorce.  Further it is clear from the acknowledgment of service dated 18 November 2009 that the Husband did not oppose the amended petition for divorce and indeed consented to divorce on the ground of 1 year’s separation.  The Decree Absolute was granted accordingly.

13.The Husband’s application for leave to appeal is based solely on his belief that an attempt to turn the clock back and to defend the divorce would assist him in his claim for property in Dubai.  Whatever may be his motive, he has not proffered any grounds for setting aside the decree.  We do not see any merit in his application and we would dismiss it. 

14.Pursuant to Order 59 rule 2A(8) Rules of the High Court it is ordered that no party may request this determination to be reconsidered at an oral hearing inter partes. 

The Respondent, in person